FACTS AND PROCEEDINGS BELOW



Filed 10/2/20CERTIFIED FOR PUBLICATIONIN THE COURT OF APPEAL OF THE STATE OF CALIFORNIASECOND APPELLATE DISTRICTDIVISION ONETHE PEOPLE,Plaintiff and Respondent,v.ANTWAN ALLISON,Defendant and Appellant. B300575 (Los Angeles County Super. Ct. No. PA022581)APPEAL from an order of the Superior Court of Los?Angeles County, Eric P. Harmon, Judge. Affirmed.____________________________Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Charles S. Lee and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.____________________________This case presents the same question we addressed recently in People v. Galvan (2020) 52 Cal.App.5th 1134 (Galvan): whether a defendant convicted of murder with a felony-murder special circumstance (Pen. Code, § 190.2, subd. (a)(17)) is eligible for resentencing under section 1170.95. Just as in Galvan, we?answer that question in the negative, and accordingly, we affirm the trial court’s denial of the defendant’s petition for resentencing. We publish this opinion in order to respond to our?colleagues in Division 5 of this court, who in People v. York (2020) 54 Cal.App.5th 250 (York) disagreed with our analysis in Galvan.In 1997, a jury convicted defendant and appellant Antwan Allison of murder on the basis of his participation in a home invasion robbery in which?either Allison or a cohort shot and killed two victims. The jury, however, was deadlocked on the prosecution’s allegation of felony-murder special circumstances (§?190.2, subd. (a)(17)), which required the jury to find either that?Allison was the actual killer, that he acted with the intent to?kill, or that he was a major participant in the robbery who acted with?reckless indifference to human life. To avoid a retrial of that issue and a possible sentence of life in prison without the possibility of parole, as part of a plea bargain, Allison admitted the truth of the felony-murder special circumstances, and the court found there was a factual basis for the admission and accepted the plea.In 2019, relying on recently enacted section?1170.95, Allison petitioned the trial court to vacate his?murder conviction and resentence him. The court denied the?petition because, based on the special circumstance finding,?Allison could still be convicted of murder and therefore was ineligible for resentencing under section?1170.95.Allison, however, contends that his 1997 special circumstance admission can no longer support a felony-murder conviction in light of our Supreme Court’s decisions in?People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016)?63 Cal.4th 522 (Clark), which clarified the meaning of?“major participant” and “reckless indifference to?human life.”? We disagree and affirm the trial court’s order because section?1170.95 is not a vehicle for such a challenge. (See?Galvan, supra,?52 Cal.App.5th at pp. 1141-1142.)FACTS AND PROCEEDINGS BELOWThe following account of the facts underlying Allison’s conviction is taken from our opinion in his original appeal. (People v. Allison (Jan. 31, 2000, B121801) [nonpub. opn.].)Allison’s codefendant, Ricky Smith, was an acquaintance of?15-year-old Jonathan Landau (Jonathan) and had visited the?Landau residence several times. Smith and Allison agreed to?a plan by?which Smith would meet with Jonathan at the Landau home.??After Jonathan’s parents went to bed, Smith would leave the?front door unlocked, and Allison would enter and rob the residents. Smith?would pretend to be a victim. Allison told police that the plan?was Smith’s idea, and that Smith provided Allison with a ski?mask, gloves, and a gun.The two defendants put their plan into action on the evening of January 2, 1996. Allison entered the house through the unlocked front door, gathered Jonathan and Jonathan’s parents (Richard and Donna Landau) together in the hallway, struck Richard on the forehead with his gun, and ordered the?Landaus to lie down on the floor. Allison ordered Smith to?restrain the Landaus with tape. Smith placed tape over all three Landaus’ eyes, and bound their hands.The defendants also placed plastic bags over the Landaus’ heads. Richard and Donna complained that it was difficult to?breathe, at which point one of the defendants fired several gunshots, killing Richard and Donna and wounding Jonathan in?the leg. Jonathan, whose eyes were covered by tape, could not see who fired the shots. Jonathan pretended to be dead and remained still until he was sure the defendants had left, at which point he called the police. The defendants stole jewelry, credit cards, checks, and Donna’s checkbook.Allison’s first trial resulted in a hung jury. At?the second?trial, the jury convicted him of two counts of first degree murder (§§ 187, subd. (a), 189), one count of assault with a firearm (§?245,?subd. (a)(2)), one count of burglary (§ 459), and one count of?robbery (§ 211). The jury could not reach a verdict as to whether?felony-murder special circumstances applied to the?murder counts. (See § 190.2, subd. (a)(17).) Rather than proceed to a third trial on the special circumstances, Allison agreed to?a?plea bargain, according to which he admitted the special circumstances. In exchange, the prosecution agreed to?request that the trial court exercise its discretion not to impose?a sentence of life without parole. The court imposed two?consecutive terms of 25 years to life for the murders, plus an?additional fouryear consecutive sentence for assault with a?firearm. The court stayed its sentence on the robbery and burglary counts pursuant to section 654. In 2018, the Legislature enacted Senate Bill No.?1437 (2017–2018 Reg. Sess.) (Senate Bill No. 1437), which, among?other changes, amended section 188 to eliminate felonymurder liability in cases in which the defendant was?not?a?major participant in the underlying felony or did not?act?with reckless indifference to human life. (People v. Lamoureux (2019) 42 Cal.App.5th 241, 247–248.) The Legislature also enacted section?1170.95, which establishes a procedure for vacating murder convictions for defendants who could no longer be convicted of murder under the new law and resentencing such defendants. (Stats. 2018, ch. 1015, §?4, pp.?6675–6677.)On January 21, 2019, Allison filed a petition for resentencing under section 1170.95 in which he declared that he?had been convicted of murder under the felonymurder rule or?the natural and probable consequences doctrine and that he could not now be convicted of murder because of the changes made to sections 188 and 189. Upon receipt of the petition, the?trial court appointed counsel to represent Allison.The district attorney filed an opposition challenging the?constitutionality of Senate Bill No. 1437, and a?separate opposition arguing that Allison was ineligible for?resentencing because he was a major participant in the underlying crimes and acted with reckless indifference to human life and therefore met the new criteria for felony murder. Allison’s counsel filed a reply brief arguing that Senate Bill No. 1437 was constitutional and that Allison had established a prima facie case for relief.The trial court held a hearing, then issued a written order denying the petition on the ground that Allison had failed to make a prima facie case. The court reasoned that, by admitting the special circumstances, Allison had admitted that at minimum he was a major participant in the underlying felony and acted with reckless indifference to human life. The court concluded that the enactment of Senate Bill No. 1437 therefore did not allow Allison’s conviction to be vacated.Allison appealed, and we appointed counsel to represent him. Counsel filed a brief pursuant to People v. Wende (1979) 25?Cal.3d 436 (Wende), raising no issues and asking this court to review the record independently. In cases like this one, where the defendant has no constitutional right to representation by counsel, we are not obligated to follow the procedures set out by?Wende to review the record independently and determine whether any arguable issues exist. (People v. Cole (2020) 52?Cal.App.5th 1023, 1034.) Nevertheless, we have the discretion to?review the record in the interests of justice. (See People v. Flores?(2020) 54 Cal.App.5th 266, 273–274.) In this case, we exercised that?discretion and requested that the?parties brief the?following issue: Whether the trial court properly?relied on?Allison’s admission of felony-murder special circumstances (§?190.2, subd. (a)(17)) as the sole basis for finding that he had not?made a prima facie showing that he was entitled to relief.DISCUSSIONA.Background on Section 1170.95Section 1170.95 allows a defendant serving a sentence for felony murder who could not be convicted of murder because of the amendments to sections 188 and 189 contained in Senate Bill?No. 1437 to petition for resentencing. The statute requires a?defendant to submit a petition affirming that he or she: (1)?was?charged with murder in a manner “that allowed the prosecution to proceed under a theory of felony murder or murder?under the?natural and probable consequences doctrine” (§?1170.95, subd.?(a)(1)); (2) was “convicted of” or pleaded guilty to “first degree or second degree murder” (§ 1170.95, subd.?(a)(2)); and (3)?“could not be convicted of first or?second degree murder because of changes to?Section 188 or 189?made” in Senate Bill No.?1437 (§ 1170.95, subd.?(a)(3)). As described above, those changes eliminated the natural and probable consequences doctrine as a basis for murder liability, and added a requirement for felony murder that?a defendant must have been at least a major participant in the underlying felony who acted with reckless indifference to human life.Upon receipt of a facially sufficient petition, the trial court?reviews the matter to determine whether the petitioner has?made a prima facie showing that he or she “falls within the provisions” of the statute. (§ 1170.95, subd. (c).) If?the petitioner meets this requirement, the court shall appoint counsel for the defendant upon request and allow for briefing. (Ibid.) “If the petitioner makes a prima facie showing that he or she is entitled to relief,” the court issues an order?to show cause and holds a hearing to determine whether to?vacate the murder conviction. (§?1170.95, subds. (c) & (d)(1).) In this?case, the trial court denied?the petition at the?second stage of?prima facie review under section 1170.95, subdivision (c), after appointing counsel to?represent Allison. B.A Defendant with a Felonymurder Special Circumstance Finding Is Ineligible for Resentencing Under Section 1170.95To be eligible for resentencing under section 1170.95, Allison must make a prima facie showing that he “could not be?convicted of first or second degree murder because of changes to Section 188 or 189?made” in Senate Bill No.?1437. (§ 1170.95, subd. (a)(3), italics added.) Under the newly amended version of?section 189, a defendant can be convicted of?felony murder only?if?he: was the actual killer; acted with the?intent to?kill in?aiding, abetting, counseling, commanding, inducing, soliciting, requesting, or assisting in first degree murder; or “was?a major participant in the underlying felony and?acted with reckless indifference to human life, as described in subdivision (d) of?Section 190.2.” (§ 189, subd. (e)(3).) These are identical to the?requirements of a felonymurder special circumstance now and?in 1997 when Allison made his admission. (See § 190.2, subds.?(b)–(d); Prop. 196,?as approved by voters, Gen. Elec. (Mar.?26, 1996) [amending § 190.2].) Thus, the special-circumstance admission shows as a matter of law that Allison could still be convicted of felony murder even under the newly amended version of section 189, and prevents Allison from making a prima?facie case that he is?eligible for resentencing.Allison attempts to avoid this conclusion by attacking the?validity of the felony-murder special circumstances. He notes?that after his conviction of felony murder, the Supreme Court decided Banks and Clark, clarifying the interpretation of?the?concepts of major participation and reckless indifference to?human life. In Banks, the Court evaluated existing United?States Supreme Court jurisprudence on the issue and set?out a?series of considerations relevant to?determining whether a particular defendant was a major participant in the?underlying felony. (See Banks, supra, 61?Cal.4th at p. 803.) The?Court did the same in Clark with respect to whether the?defendant acted with reckless indifference to human life. (See?Clark, supra, 63?Cal.4th at pp. 618–623.) Because no court has?examined whether there was a factual basis to conclude that Allison was?a?major participant who acted?with reckless indifference to?human life according to the standards enunciated in Banks and Clark, Allison argues that the special circumstance admission does not show as a?matter of law that he is ineligible for resentencing under section?1170.95. The court in York agreed?with this argument and held that a defendant with a felony-murder special?circumstance could be eligible for relief?under section 1170.95. (York, supra, 54 Cal.App.5th at pp.?257–258.)We disagree, just as we did in Galvan. Allison’s argument exaggerates the effect of Banks and Clark. Those opinions did not change the law, but “merely clarified the ‘major participant’ and ‘reckless indifference to human life’ principles that existed when defendant’s conviction became final.” (In re Miller?(2017) 14 Cal.App.5th 960, 978.) The phrases “major participant” and?“reckless indifference to human life” do not have specialized definitions, but are interpreted as they are used in common parlance. (See Banks, supra, 61 Cal.4th at pp. 800–801; People v. Price (2017) 8 Cal.App.5th 409, 450–451.) Jury instructions regarding the mental state required for a felony-murder special?circumstance are not defective if they do not include the Banks and Clark factors. (Id. at p. 451.) Indeed, the?pattern jury?instruction regarding major participation and reckless indifference remains the same as it was before Banks and Clark. (See CALCRIM No. 703; People v. Gomez (2020) 52 Cal.App.5th 1,?14, fn. 6 [setting forth CALCRIM No. 703 prior to Banks and Clark].) The instruction currently includes optional language suggested by the Banks and Clark decisions, but even so, the inclusion of the optional language does not materially change the instruction. The bench notes to the instruction state that Banks “stopped short of holding that the court has a sua?sponte duty to instruct on those factors,” and Clark “did not hold that the court has a sua sponte duty to instruct on those factors.” (Bench Notes to CALCRIM No. 703 (2020 ed.) p.?452; see People v. Gomez (2020) 52 Cal.App.5th 1, 14, fn. 6.)Moreover, Allison had the same incentive at his original trial to attempt to minimize his involvement in the robbery and?his culpability for the killings as he would have had if his trial?had taken place after Banks and Clark. In short, there is?no?reason to believe that Allison’s admission of the special circumstance after his original trial was any different in meaning?or effect than it would have been if he had made it today. If defendants like Allison were able to petition for relief under section 1170.95, it would create a disparity by giving defendants with pre-Banks and Clark special-circumstance findings an opportunity to retry their cases, even?as more recently convicted defendants are denied this?opportunity. (See?Galvan, supra, 52 Cal.App.5th at pp.?11421143.)The York court also stated that our opinion in Galvan was?flawed for ignoring section 1170.95, subdivision (d)(2), which?requires the trial court to grant relief “[i]f there was a prior?finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony.” (§ 1170.95, subd. (d)(2).) Because there is no equivalent subdivision requiring the denial of relief where a court or jury previously found that the petitioner did act?with reckless indifference to human life and was a major participant in the underlying felony, the court in York reasoned?that we should infer that the Legislature meant to allow a defendant in that situation to pursue relief under section?1170.95. (York, supra, 54?Cal.App.5th at p. 260.)We disagree. The Legislature could not and did not need to?spell out every ground for denying a petition. For example, the?Legislature did not specify that a defendant “who was found to have personally and intentionally discharged a firearm causing great bodily injury or death in a single victim homicide within the?meaning of section 12022.53, subdivision (d)” is ineligible for relief, but a court would be correct to summarily deny a petition in such a case because the defendant could not make a prima facie claim that he was entitled to relief. (People v. Verdugo (2020) 44 Cal.App.5th 320, 330 (Verdugo), review granted Mar.?18, 2020, S260493.) The same is true with numerous other prior findings, such as “administration of poison” or “street gang” special circumstances, which require that the defendant killed the victim. (See §?190.2,?subd. (a)(19) & (22).) If?these kinds of findings did not bar defendants from relief under?section 1170.95, it would be unclear?how any prior factual findings could preclude relief under?section?1170.95. For these reasons we conclude that the Legislature’s silence regarding defendants with pre-Banks and Clark special circumstances does not imply that such defendants are eligible for resentencing under section 1170.95.Allison’s argument fails for another reason. To be eligible for resentencing under section 1170.95, a defendant must show that he “could not be convicted of first or second degree murder because of changes to Section?188 or?189 made” in Senate Bill No.?1437. (§ 1170.95, subd. (a)(3), italics added.) But Senate Bill?No. 1437 alone does nothing to help defendants like Allison. Under the new law, to convict a defendant of felony murder, the?prosecution must prove that the defendant at a minimum was?a major participant in a felony and acted with reckless indifference to human life. But that is precisely what Allison admitted as?part of his plea bargain. He now claims that his special circumstance is no longer valid because of Banks and Clark, not?“because of” anything in Senate Bill No.?1437. (§?1170.95, subd. (a)(3); see Galvan, supra, 52 Cal.App.5th?at p.?1142.)The court in York disagreed with our analysis, explaining that “[w]hat permits a defendant convicted of felony-murder to challenge his or her murder conviction based on the contention that he or she was not a major participant in the underlying felony who acted with reckless indifference to human life, are?the?changes Senate Bill [No.] 1437 made to sections 188 and?189,?and in particular the addition of section 189, subdivision?(e)(3), not the rulings in Banks and Clark.” (York, supra, 54 Cal.App.5th at p. 261.) At the same time, however, the?York opinion included a footnote declining to?express an opinion as to whether a prior finding that was not affected by an?intervening change in the law (such as Banks and?Clark) should be treated as preclusive in evaluating a section?1170.95 petition. (York, supra, at p. 258, fn. 5.)We are not persuaded by York because, notwithstanding York’s cautious footnote, the consequence of York’s analysis is?that no prior jury findings would ever preclude relief under section 1170.95. No matter how conclusively the prior findings establish the defendant’s liability for murder under amended sections 188 and 189, the defendant would always be able to make the same argument endorsed in York: What permits the?defendant to challenge his murder conviction based on the?contention that the prior findings were wrong are the changes?made to sections 188 and 189, and that is all that subdivision (a)(3) of section 1170.95 requires. Thus, even if the?jury found that the defendant was the actual killer or acted with?intent to kill or otherwise acted with malice, relief under section 1170.95 might still be available—none of those findings was required for murder liability before Senate Bill No. 1437 (because a defendant who lacked malice and was not the actual killer could still have been convicted on a felony murder or natural and probable consequences theory). As a result, the petitioner could contend, under York, that he or she was not the actual killer or did not act with malice and therefore could not be convicted of murder because of the changes Senate Bill No.?1437 made to?sections 188 and 189. Thus, every convicted murderer who could?make a prima facie showing (whatever that?might be) that the prior findings were factually incorrect would be entitled to a bench trial de novo on those findings.We do not believe it is reasonable to interpret section?1170.95 as allowing for such challenges, namely, challenges based on attacks on prior factual findings. Nothing in?the language of section 1170.95 suggests it was intended to?provide redress for allegedly erroneous prior factfinding. In?particular, subdivision (a)(3) of section 1170.95 says nothing about erroneous prior findings or the possibility of proving contrary facts if given a second chance. Rather, it requires that?the petitioner could not be convicted of murder because of?the?changes to sections 188 and 189, not because a prior fact?finder got the facts wrong. The purpose of section 1170.95 is to give defendants the benefit of amended sections 188 and 189 with respect to issues not previously determined, not to provide a?do-over on factual disputes that have already been resolved.For these reasons, we disagree with York and believe that Verdugo, supra, 44 Cal.App.5th 320, review granted March 18, 2020, S260493, correctly describes the role of prior factual findings in the analysis of a petition under?section?1170.95. According to Verdugo, relief under section?1170.95 is barred if a?prior finding shows the petitioner “was convicted on?a?ground that remains valid notwithstanding Senate Bill No.?1437’s amendments to sections 188 and 189.” (Verdugo, supra, 44 Cal.App.5th at p. 330.) Verdugo’s interpretation is faithful to the?language of subdivision (a)(3) of section 1170.95: If?the prior finding shows the petitioner meets the requirements for murder liability under amended sections 188 and 189, then it?is not true that the petitioner could not be convicted of murder because of the changes to sections 188 and 189, and the petition must be denied.DISPOSITIONThe trial court’s order is affirmed.CERTIFIED FOR PUBLICATION.ROTHSCHILD, P. J.We concur:CHANEY, J.SINANIAN, J.* ................
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